Debt Harassment Protection and Litigation

What is Debt Harassment and do I need Legal Representation?

A “debt collector” is someone who regularly tries to collect debts owed to others. A debt collector may contact you if you are behind in your payments to a creditor on a personal, family or household debt, or if an error has been made in your account.

Debt Collectors often turn to unscrupulous means in pursuit of recovering money allegedly owed on delinquent accounts.  How often do debt collectors take too aggressive an approach?  Often enough that numerous laws have been put into place to protect people from debt collectors’ behavior.   Debt collection agents carry out multiple strategies such as calling personal phones and work phones, and even showing up at an individual’s front door or place of work.  Collection agents might contact family, friends, and neighbors of the borrower in attempts to confirm contact information.  Debt collection agencies may mail late payment notices and collection letters.  Debt collection agencies often report debt to credit bureaus in an effort to cause consumers problems with getting new credit.  Having an account in “collection status” lowers consumers credit scores and may prevent a consumer from taking out a loan or mortgage.     A threshold goal of debt collectors is to gain the consumers attention. 

The Federal Trade Commission monitors debt collectors and there are several laws in place to protect consumers including The Fair Debt Collection Practices Act, The Florida Consumer Collection Practices Act, The Telephone Consumer Protection Act, and Florida’s Telephone Solicitation Act.

  • A debt collector may not communicate w22pxith you or your family with such frequency that it can be reasonably considered harassment.
  • A debt collector may not contact you at work if it knows your employer does not approve of the communications.
  • A debt collector cannot contact you at unreasonable times and places, such as before 8 am or after 9 pm, unless you agree.
  • A debt collector is required to send written notice within five days after they first contact you.
  • The notice must tell the amount of money you allegedly owe.
  • The notice must specify the name of the creditor you allegedly owe the money to.
  • The notice must state what action you should take if you believe you do not owe the money.

You may stop a collector from contacting you by writing a letter to the agency telling them to stop. Once the agency receives your letter, they can only contact you to let you know they will stop or to let you know a specific action is contemplated or will be taken. If you do not believe you owe the debt and you write the agency informing it you do not owe the debt, it may not contact you after unless you are sent proof of the debt.

A debt collector cannot abuse or harass anyone. Threats of violence against a person, property, or reputation is not permitted. Obscene and profane language is strictly prohibited. A debt collector cannot advertise you owe the debt or repeatedly make phone calls over and over with the intent to harass or abuse you. At the initiation of a phone call the debt collector’s is required to identify themselves. Debt collectors may not imitate law enforcement, falsely claim to be attorneys, falsely claim attorneys are involved in your collection matter, claim to be a credit bureau, indicate papers sent to you are legal forms when they are not, or suggest that you have committed a crime. Debt collectors cannot misrepresent the amount of the debt you owe. Debt collectors cannot tell you will be arrested if you do not pay, or tell you they will seize, garnish, attach or sell your property or wages unless the collection agency actually intends to do so and has the legal right to do so.

When debt collectors don’t follow the law, you can complain to the Florida Office of Financial Regulation or the Federal Trade Commission. However, many consumers who have been harassed by creditors or have experienced damages as the result of creditors, find it much more satisfying to file a civil lawsuit and recovery actual and/or statutory money damages. Under both the FCCPA and FDCPA Plaintiffs can recover up to $1,000.00 in statutory damages in addition to actual damages, if any. In other words, the legislature gave the Court authority to award $1,000.00 for violations by debt collectors without having to show actual damages. The legislature also wrote into the laws that if you win in Court the debt Collector must pay your attorney’s fees. At Florida Litigators, out debt harassment lawyers, take cases on a contingency fee basis and advance all costs. What this means to you is that there are no out of pocket expenses and if you win, the debt collector reimburses Florida Litigators for our clients attorney’s fees and costs. In the event a case is unsuccessful, our clients are not responsible for our attorney’s fees or costs advanced on their behalf.

What is the Florida Consumer Collection Practices Act (FCCPA)?

The Florida Consumer Collection Practices Act (FCCPA) is Florida’s supplement to the federal Fair Debt Collection Practices Act (FDCPA).  The FCCPA provides it is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.

Creditors and debt collection agencies are permitted to take reasonable steps to enforce and collect payment of debts. That is because an efficient and productive economy requires a credit process.  The debt collection practices statutes promote credit extension and debt enforcement practices that are honest, fair, and responsible. They do this by placing reasonable limits on the kinds of activities that creditors and debt collection agencies can employ to obtain payment of debts.

The fair debt collection practices statutes also promote honest , fair, and responsible debt collection by giving consumer debtors specific rights. These include the right to cut off contacts by a debt collection agency, the right to specify periods when and places where contacts with the debtor may and may not be made, and the right to dispute a debt and require a debt collection agency to investigate its validity and amount.

To state a claim for violation of the FCCPA, a plaintiff must show that (1) the plaintiff was the object of collection activity arising from consumer debt, and (2) the defendant engaged in an act or omission prohibited by FCCPA.  Alleged violations under FDCPA and FCCPA are measured under the “least-sophisticated-debtor standard,” which is an objective test.  Courts have found that even in circumstances where the plaintiff is sophisticated party, such as a lawyer, the court is to maintain the objective “least sophisticated consumer” standard.  In applying the least sophisticated consumer standard to determine whether the wording in a collection notice is misleading, the court is to consider whether the wording may be “open to more than one reasonable interpretation, at least one of which is inaccurate.”

The FCCPA is broader in scope than the FDCPA because it regulates all “persons” engaged in consumer debt collection, rather than “debt collectors”.  “Persons” includes natural personals and legal entities or in other words the original creditor.  The FDCPA does not apply to original creditors.  The FCCPA applies only to conduct within the course of collecting on a consumer debt, which has been defined as obligations of a consumer arising out of a transaction in which the money, property, insurance, or services at issue are primarily for personal, family, or household purposes.  In other words, the FCCPA and FDCPA do not apply to business debt.  As used in the FCCPA, “debtor” or “consumer” means any natural person obligated or allegedly obligated to pay any debt.  The FCCPA applies even if the consumer is not the actual debtor as long as the person taking the prohibited action asserts that the consumer is obligated on the debt.

The FCCPA prohibits activities that occur in collecting consumer debt.  In order to succeed in a claim, the Plaintiff must show that the Defendant was engaging in collection activity.  To be “in connection with the collection of a debt,” a letter need not make an explicit demand for payment.  A letter constitutes “debt collection” when it includes a due date, a total amount due, instructions for making payment, and potential penalties if no payment is received.  Some letters have been found not to constitute debt collection because they did not demand payment or delver an ultimatum or establish a deadline.  In other words, letters correspondence that merely seeks to communicate information or relates to the enforcement of a security does not constitute debt collection activity. In determining whether a communication is “in connection with the collection of any debt”, courts  look to the language of the letters in question, specifically to statements that demand payment, discuss additional fees if payment is not tendered, and disclose that the sender was attempting to collect a debt.  A communication can have more than one purpose, for example, providing information to a debtor as well collecting a debt.  Courts have developed a factor-based analysis that takes into account:

 

  1.  the nature of the relationship of the parties;
  2.  whether the communication expressly demanded payment or stated a balance due;
  3.  whether it was sent in response to an inquiry or request by the debtor;
  4.  whether the statements were part of a strategy to make payment more likely;
  5.  whether the communication was from a debt collector;
  6.  whether it stated that it was an attempt to collect a debt;
  7.  whether it threatened consequences should the debtor fail to pay.

What is the bottom line and what am I protected against?

The FCCPA regulates whom a creditor may contact concerning a consumer debt and when, where, and how a creditor may communicate with a debtor and other persons.  In collection consumer debts, no person shall:

  1. Simulate in any manner a law enforcement officer or a representative of any governmental agency.
  2. Use or threaten force or violence.
  3. Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor’s reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6).
  4. Communicate or threaten to communicate with a debtor’s employer before obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection. However, this does not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained.
  5. Disclose to a person other than the debtor or her or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.
  6. Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made before such dispute has been asserted and written notice is received from the debtor that any part of the debt is disputed, and if such dispute is reasonable, the person who made the original disclosure must reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days.
  7. Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.
  8. Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family.
  9. Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.
  10. Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law, when it is not.
  11. Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare.
  12. Orally communicate with a debtor in a manner that gives the false impression or appearance that such person is or is associated with an attorney.
  13. Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor.
  14. Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.
  15. Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents if requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt.
  16. Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to “Deadbeat, Jane Doe” or “Deadbeat, John Doe.”
  17. Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor.

    (a) The person may presume that the time a telephone call is received conforms to the local time zone assigned to the area code of the number called, unless the person reasonably believes that the debtor’s telephone is located in a different time zone.

    (b) If, such as with toll-free numbers, an area code is not assigned to a specific geographic area, the person may presume that the time a telephone call is received conforms to the local time zone of the debtor’s last known place of residence, unless the person reasonably believes that the debtor’s telephone is located in a different time zone.

  18. Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.
  19. Cause a debtor to be charged for communications by concealing the true purpose of the communication, including collect telephone calls and telegram fees.

For Violations of Sub Sections 5, 6, 9, 18, Courts have found that a violation of these subsections requires a showing of “actual knowledge”.  In other words, engaging in the prohibited activity is enough for the other sub sections the Defendant “should have known not to”, but for 5, 6, 9, 18 the Plaintiff must show that the Defendant “must have known” or was in fact aware of its misconduct.

What does “Bona Fide Error” mean regarding my debt?

The FCCPA provides for a defense based on a “bona fide error.”  The bona fide error defense has three elements; all must be proven to support the defense. Specifically, a defendant has the burden to show that:

(1) “its errors were not intentional,”
(2) “its errors were bona fide,” and
(3) the “errors occurred despite the maintenance of procedures reasonably adapted to avoid any such errors.”

Bona Fide here means, that the errors were made in good faith and objectionably reasonable. To prevail on this defense, the defendant must show that it actually employed procedures, and that those procedures were reasonably adapted to avoid the specific errors at issue.

A debtor may bring a civil action against any person in violation of the FCCPA in the county where the alleged violator resides or has its principal place of business or in the county where the alleged violation occurred.  The debtor must commence the action within two years after the date the alleged violation occurred.

The FCCPA provides for actual damages, statutory damages not exceeding $1,000, court costs, and plaintiff’s reasonable attorney’s fees. Actual damages include those for emotional distress and related harm .The court may also award punitive damages if the defendant’s actions “evidence a purpose to inflict insult and injury, or are wholly without excuse.” Fees are “one way” to the plaintiff, unless the court finds that the suit fails to raise a justiciable issue of law or fact, in which case the plaintiff will be liable for court costs and reasonable attorney’s fees incurred by the defendant.  Courts have found that proposals for settlements, which shift fees in Florida litigation, are not applicable to FCCPA claims and have stricken them down.  The FCCPA allows a court to provide such equitable relief, including injunctive relief,  as it deems necessary or proper

 

 

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